What the panel ordered
The Board rescinded the July 5, 2022 Findings and Order, substituted new findings and orders, and returned the matter to the WCJ for further proceedings consistent with the opinion.
Applicant sought reconsideration of a July 5, 2022 Findings and Order dismissing his amended application without prejudice based on res judicata/collateral estoppel; the WCJ recommended denial of reconsideration; the Appeals Board rescinded the WCJ's decision and returned the matter for further proceedings.
This docket was decided more than once. Shown here is the latest released decision; we also hold August 30, 2021.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Board granted the petition for QME panels to issue to develop the record regarding claimed injuries in neurology and oncology.
From the decision · page 12Here, applicant requested orders directing the Medical Unit to provide QME panels in neurology and oncology, on September 10, 2020 and again on February 10, 2022. In the September 10, 2020 request, applicant explained that the request for the two QME panels was based on the recommendation of Agreed Medical Evaluator (AME) Dr. Albert Kastle, who recommended in his deposition that additional medical experts evaluate applicant's claims of lymphoma and encephalitis. (Applicant's Exh. 9, 9/10/20 Petition for Order to Medical Unit, at p. 3.) The record indicates that no action was taken on this petition. A second petition, filed February 10, 2022, reiterated the request for an order that these QME panels issue. (Joint Exh. O, 2/10/22 Petition for Order to Medical Unit.) Although this request was listed as an issue for trial at the March 29, 2022 proceeding, no findings or orders were entered as to this issue in the July 5, 2022 F&O. (3/29/22 Minutes; 7/5/22 F&O.) Thus, to date, it appears that panels in neurology and oncology have not issued.
The Board found that the 2021 Findings and Award did not decide all body parts except psyche, so res judicata/collateral estoppel did not bar litigation of other body parts.
From the decision · page 4The matter proceeded to trial on March 29, 2022. The parties stipulated that applicant sustained a cumulative injury to his psyche AOE/COE, while employed by defendant, during the time period July 7, 2017 through January 30, 2028; that employer was legally uninsured at the time of injury; and that employer has furnished some medical treatment. (3/29/22 MOH, at p. 2.) The issues framed for trial were 1) "Dismissal of the Amended Application3 on the basis of res judicata and unclean hands"; and, 2) "Whether additional panels in neurology and internal medicine medical oncology are required in this matter." (Ibid.) Exhibits were entered into evidence, including applicant's October 21, 2021Amended Application, admitted as Joint Exhibit M, and applicant's February 15, 2022 Second Amended Application, admitted as Joint Exhibit P. (Id. at pp. 2-3.) There were no witnesses. (Id. at p.3.) The WCJ ordered that the matter would stand submitted in 20 calendar days, and the parties could file trial briefs during that time period. (Id. at p. 1.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The 2021 Findings and Award did not include findings on body parts other than psyche and deferred those issues.
Favours Applicant prevailed
This meant the claims for other body parts were not finally decided and could be litigated further.
From the decision · page 8Here, the WCJ's 2021 findings did not comply with the requirement in section 5313 that the WCJ "make and file findings upon all facts involved in the controversy." (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10787(c)(5); Blackledge, supra, 75 Cal.Comp.Cases at p. 621.) In the 2021 proceeding, there were multiple body parts framed as issues for trial, including psyche, brain, stress, nervous system and body SMS. (5/7/25 MOH, at p. 2.) The 2021 FA&O, however, addressed only the issue of applicant's psychiatric injury. (Joint Exh. I, 6/8/21 FA&O, at p. 1.) The 2021 FA&O included no findings regarding the additional body parts at issue here. Moreover, that FA&O included an order that "All other issues are deferred, with jurisdiction also reserved." (Id. at p. 2.) Thus, although the body parts were listed as issues in the minutes of hearing, and discussed in the Opinion on Decision, those issues were not actually "decided on the merits," as required. (Pacific Lumber, supra, 37 Cal.4th at p. 943.) This lack of a "final order" regarding these body parts precluded applicant from filing a petition for reconsideration regarding those body parts at that time, since there were no findings that could be challenged as to applicant's claimed body parts other than psyche.
Applicant's Second Amended Application included a detailed list of body parts not addressed in the prior decision.
Favours Applicant prevailed
Ignoring this list led to incomplete findings and required reversal of the dismissal.
From the decision · page 5addressed only the body parts as listed in applicant's Amended Application ("110-encephalitis, meningitis, and 800-lymphoma") filed October 21, 2021, and failed to mention or discuss the more detailed list of body parts ("Encephalitis: brain, 200 neck (cervical spine), 130 eyes (sensitivity to light); Meningitis: brain and 420 spinal cord; Lymphoma: lymphatic system includes the lymph nodes (lymph glands), spleen, thymus gland and bone marrow, 820 intestines, 144 throat, 430 chest, 410 abdomen, 420 back, 850 lungs, 440 pelvi[s]") in applicant's Second Amended Application filed a month before trial on February 15, 2022. (7/5/22 Opinion, at p. 3.) Based only on the first Amended Application, the WCJ concluded that "[t]he amended application therefore does not add new body parts, but rather conditions and diseases that the parties have already been aware of since the beginning of the case." (Ibid.)
Applicant requested QME panels in neurology and oncology based on AME Dr. Albert Kastle's recommendation.
Favours Applicant prevailed
The Board granted the petition to issue these panels to develop the medical record.
From the decision · page 12Here, applicant requested orders directing the Medical Unit to provide QME panels in neurology and oncology, on September 10, 2020 and again on February 10, 2022. In the September 10, 2020 request, applicant explained that the request for the two QME panels was based on the recommendation of Agreed Medical Evaluator (AME) Dr. Albert Kastle, who recommended in his deposition that additional medical experts evaluate applicant's claims of lymphoma and encephalitis. (Applicant's Exh. 9, 9/10/20 Petition for Order to Medical Unit, at p. 3.) The record indicates that no action was taken on this petition. A second petition, filed February 10, 2022, reiterated the request for an order that these QME panels issue. (Joint Exh. O, 2/10/22 Petition for Order to Medical Unit.) Although this request was listed as an issue for trial at the March 29, 2022 proceeding, no findings or orders were entered as to this issue in the July 5, 2022 F&O. (3/29/22 Minutes; 7/5/22 F&O.) Thus, to date, it appears that panels in neurology and oncology have not issued.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Recommended additional medical experts to evaluate claims of lymphoma and encephalitis.
From the decision · page 12Here, applicant requested orders directing the Medical Unit to provide QME panels in neurology and oncology, on September 10, 2020 and again on February 10, 2022. In the September 10, 2020 request, applicant explained that the request for the two QME panels was based on the recommendation of Agreed Medical Evaluator (AME) Dr. Albert Kastle, who recommended in his deposition that additional medical experts evaluate applicant's claims of lymphoma and encephalitis. (Applicant's Exh. 9, 9/10/20 Petition for Order to Medical Unit, at p. 3.) The record indicates that no action was taken on this petition. A second petition, filed February 10, 2022, reiterated the request for an order that these QME panels issue. (Joint Exh. O, 2/10/22 Petition for Order to Medical Unit.) Although this request was listed as an issue for trial at the March 29, 2022 proceeding, no findings or orders were entered as to this issue in the July 5, 2022 F&O. (3/29/22 Minutes; 7/5/22 F&O.) Thus, to date, it appears that panels in neurology and oncology have not issued.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 5313
The WCJ must make and file findings upon all facts involved in the controversy and issue an award or decision stating the determination as to the rights of the parties (Lab. Code, § 5313).
The 2021 Findings and Award did not comply with this requirement as it failed to address all claimed body parts.
From the decision · page 7Section 5313 provides, in relevant part, that the WCJ shall: Within 30 days after the case is submitted, make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties.
Lab. Code, § 5903, 5952(d)
Decisions must be supported by substantial evidence and based on admitted evidence in the record (Lab. Code, § 5903, 5952(d)).
The Board emphasized that findings must be based on substantial medical evidence, not merely pleadings.
From the decision · page 11III. It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb, supra, 11 Cal.3d 274; Garza, supra, 3 Cal.3d 312; LeVesque, supra, 1 Cal.3d 627.) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) Further, decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton, supra, 66 Cal.Comp.Cases at p. 476.) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10787.) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record.
McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1119
The record must be further developed where there is insufficient evidence on an issue (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1119).
The Board granted the petition for QME panels to issue to develop the record regarding claimed injuries in neurology and oncology.
From the decision · page 12As the law requires that the record must be further developed where there is insufficient evidence on an issue (McClune, supra, 62 Cal.App.4th at pp. 1121-1122), we grant applicant's February 10, 2022 Petition for Order to Medical Unit to Issue List of Neurology and Oncology- Internal Medicine QMEs, to provide applicant with an opportunity to be evaluated by physicians in each of these areas and to meaningfully develop the record regarding these claimed injuries.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's detailed list of body parts in Second Amended Application was ignored in prior decision, leading to incomplete findings.
From the decision · page 5addressed only the body parts as listed in applicant's Amended Application ("110-encephalitis, meningitis, and 800-lymphoma") filed October 21, 2021, and failed to mention or discuss the more detailed list of body parts ("Encephalitis: brain, 200 neck (cervical spine), 130 eyes (sensitivity to light); Meningitis: brain and 420 spinal cord; Lymphoma: lymphatic system includes the lymph nodes (lymph glands), spleen, thymus gland and bone marrow, 820 intestines, 144 throat, 430 chest, 410 abdomen, 420 back, 850 lungs, 440 pelvi[s]") in applicant's Second Amended Application filed a month before trial on February 15, 2022. (7/5/22 Opinion, at p. 3.) Based only on the first Amended Application, the WCJ concluded that "[t]he amended application therefore does not add new body parts, but rather conditions and diseases that the parties have already been aware of since the beginning of the case." (Ibid.)
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